Human Rights Committee

Communication No. 2186/2012

Views adopted by the Committee at its 112th session(7–31 October 2014)

Submitted by:	Mr. X and Ms. X (represented by counsel, Helge Nørrung)
Alleged victim:	Authors
State party:	Denmark
Date of communication:	7 August 2012 (initial submission)
Document references:	Special Rapporteur’s rules 92 and 97 decision, transmitted to the State party on 25 May 2011 (not issued in document form)
Date of adoption of Views:	22 October2014

Subject matter:	Deportation of the authors to the Russian Federation
Procedural issues:	Substantiation of claims; admissibility ratione materiae
Substantive issues:	Expulsion of aliens; risk of irreparable harm in country of origin
Articles of the Covenant:	6, 7, 14, 26
Article of the Optional Protocol:	5 (para. 2 (b))

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (112th session)

concerning

Communication No. 2186/2012 *

Submitted by:	Mr. X and Ms. X (represented by counsel, Helge Nørrung)
Alleged victims:	Authors
State party:	Denmark
Date of communication:	7 August 2012 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 22 October 2014,

Having concluded its consideration of communication No. 2186/2012 submitted to the Human Rights Committee by Mr. X and Ms. X under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1The authors of the communication are Mr. X, a Russian national born in 1979, and his wife, Ms. X, also a Russian national born in 1979, residing in Denmark at the time of the submission. Following the rejection of their asylum claim, they have been ordered to leave Denmark immediately. They submit that if Denmark proceeds with their forcible return to the Russian Federation this would constitute a violation of their rights under articles 6 and 7 of the International Covenant on Civil and Political Rights. The authors also allege violations of their rights under articles 14 and 26 by the State party. The authors are represented by counsel.

1.2On 9 August 2012, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party not to remove the authors to the Russian Federation while the communication was under consideration by the Committee.

Factual background

2.1Mr. X is of mixed ethnic origin, having a Russian mother and a Karachay father. Mrs.X is an ethnic Russian. He grew up in Karachayevsk in the North Caucasus Russian Republic of Karachay-Cherkessia. His family refused to participate in the Wahhabi activities. Mr.X submits that his father was stabbed with a knife by Wahhabi militants and passed away in the night from 13 to 14 December 1998, because he refused to send his two youngest sons to a Wahhabi training camp on the border between Georgia, the Chechen Republic and Ingushetia. The assault was reported to the authorities but it has not been investigated and nobody was held accountable. Mr. X’s mother and two of his brothers were granted asylum in Denmark in 2002 based on the above incident. In 2004, Mr. X’s other brother S.X. wrote a critical psychology essay about Wahhabism. On 20 November 2004, the 7-month-old son of his brother was killed by militants. The said brother and his wife received asylum in France in 2008. Furthermore, his fourth brother currently resides in Sweden and his half-sister has Danish citizenship. Mr. X’s entire family allegedly had problems with militants and has fled the Russian Federation for that reason. The authors submit that those facts are undisputed by the Danish Refugee Appeals Board in the present communication.

2.2Mr. X submits that, after he returned from the compulsory State military service in 1999, he and one of his brothers were visited by militants, who attempted to recruit them to participate in their activities. He and his brother fled home and lived in different places with friends and family members. In 2003, Mr. Xwas located by a group of militants at the marketplace where he worked at that time. They approached him, calling him by name, and told him that they needed people to fight for secession from the Russian Federation. When he refused to collaborate with them, they beat him up with some hard tools and kicked him all over his body. He met his future wife, a nurse, while he was being treated after the assault. The couple married on 24 October 2003 and moved to Stanitsa Storozhevaya, also in Karachay-Cherkessia, a town mainly inhabited by ethnic Russians and, as a result, there were no further inquiries in relation to Mr. X from militants between 2003 and 2006.

2.3In April 2006, Mr. X was allegedly visited by four militants from Karachayevsk at his home in Stanitsa Storozhevaya; he personally knew two of those individuals from his childhood. He submits that he was of particular interest to militants owingto his family’s status in the society, his prior experience with the military and his “Russian” appearance that could be of advantage when carrying out terrorist activities. The two individuals known to Mr. X apparently informed him ofthe date, method and location of an upcoming terrorist attack and explained his anticipated role in it as a suicide bomber. Mr. X asked for a few days to think over the “proposal”, because he was sure that in case of his upfront refusal to cooperate with militants he and his wife would be killed. Two or three days later the four individuals came back and again tried to force Mr. X and his wife to join their ranks. When on that occasion Mr. X refused to participate in the terrorist attack, he was told that in that case he and his wife would have to be killed, since they had information regarding the planned activities. Mr. X then accepted to collaborate with militants and was instructed to wait for further instructions. The individuals took the authors’ identity papers to keep them under control and to prevent them from escaping.

2.4Mr. X submits that he approached the Federal Security Service shortly thereafter and informed its agents about the planned terrorist attack. On 19 April 2006, there was some exchange of fire in Stanitsa Storozhevaya and agents of the Federal Security Service killed three of four individuals who had visited the authors.Mr. X submits that militants suspected him of leaking the information to the Federal Security Service and that a number of Wahhabi sympathizers had been working in the Federal Security Service. In addition, the authors also feared that they would be suspected as collaborators of militants by the Russian authorities, since the latter had their identity papers. Between April 2006 and 12 June 2007, the authors stayed in hiding. They then left the Russian Federation in order to goto Denmark.

2.5The authors arrived in Denmark on 18 June 2007 without valid travel documents and applied for asylum on 21 June 2007. On 19 December 2007, the Danish Immigration Service rejected their asylum application and refused to grant them a residence permit under paragraph 7 of the Aliens Act. On 29 April 2008, the Refugee Board heard the appeal and, on that basis, upheld the decision of the Immigration Service. The Refugee Board examined the authors’ claims that, in case of their return to the Russian Federation, they would be at risk of: (a) being subjected to attacks by the militants owingto the fact that they had reported on their activities to the Federal Security Service in April 2006; (b) being suspected by the Russian authorities as collaborators of the militants; and (c) being surrendered to militants by the Russian authorities because of the collaboration between the two. The Refugee Board considered that the authors’ explanation that in April 2006 they had been visited by militants with the aim of recruiting Mr. X was implausible and contrived. The Refugee Board found it unlikely that the militants would disclose the details of the planned terrorist attack to Mr. X, given that he and the other members of his family had previously refused to join them. The Refugee Board also did not consider plausible the explanations of Mr. X that, on the one hand, he revealed the details of the planned terrorist attack to the Federal Security Service, while, on the other hand, the authors feared being surrendered to the militants by the Russian authorities because of the collaboration between the two. Consequently, the Refugee Board concluded that Mr. X had not been exposed to attacks or abuse by either the militants or the Russian authorities since the incident that took place in 2003.

2.6On 30 June 2008, the authors requested that the asylum proceedings of the authors to be reopened. Mr. X argued that details of the planned terrorist attack by the militants were disclosed to him for the following reasons: (a) he had known two of the individuals who visited him in April 2006 since his childhood; (b) his father was related to the founder of Karachayevsk, the family name was respected and his participation in the Wahhabi activities would be an “example” to other young people; (c) he was a trained soldier; and (d)the militants threatened to kill him and his wife if they refused to cooperate, and their identity documents were taken away. The authors also submit that they could not seek protection from the Russian authorities because the local police was infiltrated by the militants, and out of fear of being suspected by the Russian authorities as collaborators of the militants.

2.7On 19 June 2009, the Refugee Appeals Board suspended the authors’ timelimit for departure until further notice. For the above reasons and since all the other family members have been granted asylum in Denmark and in France, on 20 April 2010, the Refugee Board decided to reopen the case and the authors were allowed to stay in Denmark while their case was pending with the Refugee Board.

2.8On 15 April 2012, the Refugee Appeals Board re-heard the appeal and, on 15 June 2012, the Refugee Board issued a decision concluding that there was no reason to make a different assessment of the evidence on whether the incident of April 2006 occurred than the one made by the Board on 29 April 2008. The Refugee Board found that the authors have not provided evidence that the episode had occurred. With the same decision, the authors were ordered to leave Denmark within seven days. The authors did not comply. They submit that they could have been summoned for deportation to the Russian Federation at any time since then. While the Danish police are not in possession of the authors’ passports, the latter maintain that any approach to the Russian Embassy in Copenhagen in preparation for deportation would reveal their whereabouts to their persecutors in Karachay-Cherkessia. The authors fear that they will be exposed to torture and/or killed by their Wahhabi persecutors and that the police in the Russian Federation willnot be able to protect them.

The complaint

3.1The authors claim that, by deporting them to the Russian Federation, the State party will violate their right to life and the right not to be subjected to torture that are guaranteed, respectively, under articles 6 and 7 of the Covenant.

3.2The authors further invoke a violation of articles 14 and 26 of the Covenant, because the decisions of all other types of boards in Denmark, except for the Refugee Board, can be appealed to the State party’s courts. Decisions of the Refugee Board are the only ones that become final without a possibility of being appealed to courts, which is discriminatory, in the authors’ opinion, against those foreigners who are seeking asylum in Denmark. They add that the consequences in refugee cases, such as possible exposure to torture and death, are far more significant than the consequences of decisions made by any other types of boards in Denmark.

State party’s observations on the admissibility and the merits of the communication

4.1In its submission dated 11 February 2013, the State party provided observations on the admissibility and merits of the communication.

4.2The State party submits that the communication should be declared inadmissible because the authors have failed to establish a prima faciecase for the purpose of admissibility of their communication under articles 6, 7, 14 and 26 of the Covenant.

4.3The State party submits that the decisions of the Refugee Appeals Board of 29 April 2008 and 15 June 2012 were made upon an individual and specific assessment taking into consideration the background information available. The Refugee Appeals Board has accepted Mr. X’s statements about his conflicts with the militants in the period from 1998 to 2003, including the killing of his father by the militants in 1998, and the contacts made by the militants with him in 1999 and in 2003, when they tried in vain to recruit him. However, the Refugee Appeals Board was unable to accept Mr. X’s statements about the visits made by the militants in April 2006 as the authors have not been able to account credibly and consistently for the reason why the militants would have told him about their planned terrorist acts. The Refugee Appeals Board noted that the authors have given inconsistent statements about the contact made by the militants in April 2006, including the number of visits, the time when the militants took their identity documents, and the time when the militants informed Mr. X about their terrorist plans, and about the authorities’ actions in continuation thereof, including the question whether there were house searches during the following week.

4.4Regarding the authors’ statement that they fear contacting the authorities in the Russian Federation as they will be returned to the town of Karachayevsk in Karachay-Cherkessia, Mr. X’s town of origin, if they identify themselves to the Russian authorities and that the police and the Federal Security Serviceof Karachayevsk have been infiltrated by the militants, the State party considers that the authors cannot be considered to have had any conflicts with the authorities in the Russian Federation or any other outstanding issue with the Russian authorities. According to his own statements, Mr. X has acted in the interests of the Government of the Russian Federation, having done his compulsory military service with the Russian Navy and having warned the Russian authorities of a potential imminent terrorist act.

4.5As to the authors’ fear that the militants have infiltrated the police and the Federal Security Service, the State party observes that in 2002 the Russian Federation adopted the Law on Countering Extremist Activity, which criminalizes a wide array of activities, including “incitement to social, racial, national or religious discord”. The Government further observes that Wahhabism is prohibited by law in several regions in the Russian Federation and that 19 Muslim groups were designated terrorist organizations in 2011.

4.6For the purpose of the authors’ asylum proceedings, the Refugee Appeals Board has obtained the asylum documents of Mr. X’s mother and two younger brothers, and subsequently found that the asylum cases of his family members were not directly linked to the motive for asylum relied on by the authors, not least because the mother and brothers left in 2001, which was six years before the authors’ departure in 2007. Additionally, the Refugee Appeals Board has obtained the asylum documents of Mr. X’s brother, S.X., and his spouse from France and pointed out a contradiction between the statements of the author and his brother regarding the same events.For instance, S.X. had stated before the French authorities that the first author had fled from their home in 1999 after he had been contacted by a former classmate and had been told to make himself ready on the next day, which the first author had taken as a threat. The State party pointed out that the first author did not mention the former classmate in his asylum application, and that he had stated instead that in 1999 he had fled his home together with his brother S.X. The Refugee Appeals Board found that the asylum case of S.X. was of no direct significance to the authors’ case in terms of time or content, observing that S. X.’s case was linked to his own acts and critical attitude to the militants. Finally, the State party mentions that Mr. X’s brother U.X., who has a residence permit for Sweden, has not been granted asylum in Sweden, but that on 10 June 2003 he had been granted time-limited residence for the period 10 June 2003 to 10 June 2008 based on his ties with a person resident in Sweden. The residence permit was subsequently made permanent.

4.7Regarding the author’s claims under articles 14 and 26 of the Covenant, the State party submits that asylum proceedings do not constitute civil rights and obligations and therefore fall outside the scope of article 14 and that the authors have failed to establish that they have been deprived of their right to access the courts. In that respect, the Government points to the fact that the Danish Refugee Appeals Board is a quasi-judicial body which qualifies as a competent, independent and impartial tribunal established by law. The Refugee Appeals Board’s decisions were further based on a procedure during which the authors had the opportunity to present their views, both in writing and orally, to the Board with the assistance of legal counsel. The Board conducted comprehensive and thorough examinations of the evidence in the case. The authors have thus been granted access to a hearing as described in article 14. Moreover, it has been established by the Supreme Court that the ordinary courts’ review of the decisions of the Refugee Appeals Board is limited to points of law. As regards the authors’ claim that they are subjected to discrimination because they cannot appeal the decisions of the Refugee Appeals Board, the Government submits that the authors were treated no differently from any other person applying for asylum, regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

4.8The State party submits that the activities of the Refugee Appeals Board are based on section 53a.(1)(i) of the Aliens Act, according to which decisions of the Danish Immigration Service refusing asylum are always appealed to the Board. An appeal of such a decision suspends enforcement of the decision. The Refugee Appeals Board is an independent, quasi-judicial body. The Board is considered a court within the meaning of article 39 of the European Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (2005/85/EC). Article 39 deals with the right of asylumseekers to have a decision in their case reviewed by a court or tribunal.

4.9The State party submits that,pursuant to section 7(1) of the Aliens Act, a residence permit is issued to an alien upon application if the alien falls underthe Convention relating to the Status of Refugees. Section 7(1) of the Aliens Act incorporates article 1A of the Convention relating to the Status of Refugees into Danish law so that, in principle, refugees are legally entitled to a residence permit. For the Refugee Appeals Board to consider that the conditions for a residence permit under section 7(1) of the Aliens Act havebeen met, the general criterion is that it may be feared that the asylumseeker will be subjected to specific and individual persecution of some severity or a risk thereof in case of return to his country of origin. The Board bases its assessment of whether that criterion has been satisfied on any particulars regarding persecution prior to the asylumseeker’s departure from his country of origin. However, the decisive point is how the asylumseeker’s situation is assumed to be in case of return to his country of origin. In its decision, the Board considers whether the asylumseeker risks persecution in case of return to his country of origin, includingin cases where the Board finds that there was no basis for asylum when the asylumseeker left his or her country of origin. An assessment of whether persecution has taken place includes the background and the intensity of the outrages, including whether the outrages are of a systematized and qualified nature. Importance is also attached to any risk of repetition of the outrages, including when the outrages took place.

4.10The Aliens Act states that any refusal of a claim for asylum must always be accompanied by a decision as to whether the alien in question can be removed from Denmark if he does not voluntarily leave the country. Pursuant to section 31(1) of the Aliens Act, an alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country (non-refoulement). It further follows from section 31(2) of the Aliens Act that no alien may be returned to a country where he or she will risk persecution on the grounds set out in article 1A of the Convention relating to the Status of Refugees, or where the alien will not be protected against being sent on to such country.

4.11The Refugee Appeals Board may assign legal counsel to the asylumseeker. In practice, the Refugee Board assigns counsel in all cases. Before the Board hearing, counsel is allowed to meet with the asylumseeker and study the case file and the existing background material. Proceedings before the Refugee Appeals Board are oral. In addition to the asylumseeker and counsel, the hearing is attended by an interpreter and a representative of the Danish Immigration Service. The Board decision will normally be served on the asylumseeker immediately after the Board hearing, and, at the same time, the chairman of the hearing will briefly explain the reasons for the decision. Decisions of the Refugee Appeals Board are based on an individual and specific assessment of the relevant case. The asylumseeker’s statements regarding the motive for seeking asylum are assessed in the light of all relevant evidence, including what is known about conditions in the country of origin (background information).

Authors’ comments on the State party’s submission

5.1On 2 May 2013, the authors submitted their comments on the State party’s submission. The authors assert that, during the interview with the Danish Immigration Service, they had a feeling of being under suspicion for not telling the truth about the case. Regarding the discrepancy of the authors’ statement about the visit by Wahhabi militants in April 2006, the authors explained that Mr. X did present the case in detail but not in strict chronological order and that there were errors in the summary of the interview minutes. The authors submit that there was a problem with the form and quality of the interviews as well as the qualifications of interpreters. The authors question the lack of educational requirement for the interpreters used by the Immigration Service and the Refugee Appeals Board as well as the absence of audio-recording of interviews. Moreover, the authors consider that the information given at the different interviews and hearing supplement each other and do not contradict. The authors dispute the State party’s position that the cases of Mr. X’s mother and brothers, who have been granted asylum in Denmark and France, were of no direct significance to the authors’ case in terms of time and content.

5.2Regarding the alleged violation of articles 14 and 26 of the Covenant, the authors point out that an appeal to the ordinary courts is excluded by the Aliens Act and that that is the only act in Denmark where decisions by a quasi-judicial board cannot be appealed to an ordinary court.

5.3The authors emphasize that Mr. X’s mother and two younger brothers have already been granted asylum based on the killings of his father by the militants; that his other brother and sister-in-law have also been granted asylum following the killings of their son by the militants; and that the Danish authorities have already accepted as fact that the militants approached Mr. X in 1999 and 2003, makingthreats and subjecting him to severe beatings. The authors consider that the rejection of the asylum claim by the Refugee Appeals Board was based upon an irrational and erroneous evaluation of the credibility of statements by the authors, in particular with regard to the last approach by the militants in 2006. The authors reiterate that the police in the Russian Federation would not be able to protect them.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the case is admissible under the Optional Protocol to the Covenant.

6.2The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee notes the authors’ claim that the decisions of the Refugee Board are the only ones that become final without a possibility of being appealed to courts and that the State party thus violates articles 14 and 26 of the Covenant. In that regard, the Committee refers to its jurisprudence that proceedings relating to the expulsion of aliens do not fall within the ambit of a determination of “rights and obligations in a suit at law” within the meaning of article 14, paragraph 1, but are governed by article 13 of the Covenant.Article 13 of the Covenant offers some of the protection afforded by article 14, paragraph 1, of the Covenant but not the right of appeal. The Committee therefore considers that the authors’ claim under article 14 is inadmissible ratione materiae pursuant to article 3 of the Optional Protocol. The Committee furthermore considers the authors’ claims with respect to article 26 of the Covenant insufficiently substantiated for purposes of admissibility and declares those claims inadmissible under article 2 of the Optional Protocol.

6.4The Committee notes the State party’s argument that the authors’ claims with respect to articles 6 and 7 of the Covenant should be declared inadmissible owing to insufficient substantiation. However, in the light of the extensive evidence submitted, both on the general country situation and on the authors’ personal circumstances, the Committee considers that the authors adequately explained the reasons for which they fear that their forcible return to the Russian Federation would result in a risk of treatment incompatible with articles 6 and 7 of the Covenant. The Committee is, therefore, of the opinion that, for the purposes of admissibility, the authors have sufficiently substantiated the allegations under articles 6 and 7 of the Covenant. As the case of Ms. X is dependent upon the case of Mr.X, the Committee does not find it necessary to consider the cases separately.

6.5In the light of the above, the Committee declares the communication admissible in so far as it raises issues under articles 6 and 7 of the Covenant and proceeds to its examination on the merits.

Consideration of the merits

7.1The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol.

7.2The Committee notes the authors’ claims that: Mr. X’s entire family had problems with the Wahhabi militants and fled the Russian Federation for that reason; between 1999 and 2003, Mr. X was living in hiding out of fear of being recruited by the militants; in 2003, Mr. X was beaten up by a group of the militants as he refused to collaborate with them; in 2006, four members of the militants visited him at his home, informed him of an upcoming terrorist attack plan and of his anticipated role in it as a suicide bomber, told him that he and his wife would have to be killed in case of his upfront refusal to cooperate with the militants and took the authors’ identity papers; Mr. X informed the Federal Security Service about the planned terrorist attack and, subsequently, agents of the Federal Security Service killed three out of four members of the militants who had visited the authors. Finally, the Committee notes the authors’ fear that they will face a real risk of being subjected to treatment contrary to articles 6 and 7 of the Covenant if they were to be forcibly returned to the Russian Federation.

7.3The Committee recalls its general comment No. 31 in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant. The Committee also recalls that, generally speaking, it is for the organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether such a risk exists.

7.4The Committee notes that the authors allege fear of torture or death at the hands of the Wahabbi militants, a group that is outlawed by the authorities of the Russian Federation. The State party’s authorities rejected their claim that Russian Federation authorities would be unwilling or unable to protect them from an attack by the militants. The State party pointed out that, according to his own statement, Mr. X has acted in the interests of the Government of the Russian Federation, having done his compulsory military service with the Russian Navy and having warned the Russian authorities of a potential imminent terrorist act. The Committee observes that the authors disagree with the factual conclusions of the State party’s authorities, but the information before the Committee does not show that those findings are manifestly unreasonable.

7.5The Committee observes that the authors’ refugee claims were thoroughly assessed by the State party’s authorities, which found that the authors’ declarations about the motive for seeking asylum and their account of the events that caused their fear of torture or killing were not credible. The Committee observes that the authors have not identified any irregularity in the decision-making process, or any risk factor that the State party’s authorities failed to take properly into account.In the light of the above, the Committee cannot conclude that the authors would face a real risk of treatment contrary to articles 6 or 7 of the Covenant if they were removed to the Russian Federation.

7.6In the circumstances of the present case, the Committee cannot conclude that the State party would violate articles 6 and 7 of the Covenant if it removed the authors to the Russian Federation.

8.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not reveal a breach of any provision of the Covenant.